Lane Cove Council v Chami
[2014] NSWLEC 3
•31 January 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Lane Cove Council v Chami [2014] NSWLEC 3 Hearing dates: 31 January 2014 Decision date: 31 January 2014 Jurisdiction: Class 4 Before: Craig J Decision: Orders as set out at [7]
Catchwords: EX PARTE APPLICATION - leave to serve short notice - motion for an interlocutory injunction - substituted service of documents appropriate Cases Cited: Lane Cove Council v Ross (No 14) [2013] NSWLEC 87 Category: Interlocutory applications Parties: Lane Cove Council (Applicant)
Sarab Chami (Respondent)Representation: N Eastman (Applicant)
No appearance (Respondent)
Pikes & Verekers Lawyers (Applicant)
No appearance (Respondent)
File Number(s): 40044 of 2014
EX TEMPORE Judgment
Premises known as 8 Bayview Street, Northwood (the premises) have achieved some notoriety in this Court. Building works carried out at those residential premises have been the subject of numerous decisions by Pepper J in a series of hearings involving Lane Cove Council and Raymond Ross. On 14 June 2013 orders were made by her Honour requiring significant demolition of works to be undertaken at the premises by Mr Ross (see Lane Cove Council v Ross (No 14) [2013] NSWLEC 87).
It appears that at about that time ownership of the premises formerly owned by Mr Ross changed. The current registered proprietor is said to be Sarab Chami.
There is before me today a Notice of Motion seeking a number of interlocutory orders leading ultimately to an application for interlocutory injunction said to be required by reason of unlawful building works being carried out at these premises allegedly by or under the direction of Sarab Chami. The present application before me does not involve the grant of interlocutory injunctions restraining building work but rather seeks leave to serve short notice of an application seeking such an order.
The application is supported by an affidavit sworn by Adrian Moore on 30 January 2014. Mr Moore is a Senior Building Surveyor employed by the Applicant Council. Mr Moore's affidavit is detailed and I do not recite for present purposes that detail. Suffice it is to note that on the basis of the evidence that he provides there is evidence suggestive of work being carried out at the premises by, or as I have said, at the direction of Ms Chami. Ms Chami, as owner, exercises control over the premises, evidenced by her vociferous attempts to exclude Mr Moore and other Council officers from entering upon the premises. It also seems that from time to time Ms Chami has been represented by a solicitor in the context of the dispute between the Council and Mr Ross.
The Notice of Motion with which I am asked to deal, requires both leave to commence forthwith proceedings seeking final relief relating to unlawful building work and, as I have indicated, foreshadows the seeking of interlocutory relief pending the final hearing of the proceedings. The latter application is a matter to be dealt with by the Duty Judge, the purpose of the present motion being to ensure that the matter comes before the Court expeditiously to enable the Duty Judge to give appropriate directions so that interlocutory applications may be dealt with efficiently.
On the material before me, I am satisfied that it is appropriate to grant leave to serve short notice of both the Summons and the Notice of Motion in so far as it foreshadows the seeking of an interlocutory order. I am also satisfied on the material contained in Mr Moore's affidavit that if the documents commencing proceedings together with the supporting affidavit and Notice of Motion are both affixed to the premises, sent to a post office box number which is shown on the notice of sale following the recent acquisition of the property by Ms Chami, and notice is given to solicitors who have recently acted both for Mr Ross and Ms Chami, there is a very real prospect that the institution of the proceedings and the requirement for attendance to consider the making of an interlocutory injunction will come to the attention of Ms Chami.
In those circumstances I make the following orders:
(1) Grant leave to the Applicant to file in Court -
(i) a Summons Class 4 dated 31 January 2014 commencing proceedings against Sarab Chami and
(ii) a Notice of Motion also dated 31 January 2014
both documents in the form initialled by me and placed with the papers.
(2) Grant leave to the applicant to serve both the Summons and Notice of Motion referred to in Order 1 together with a sealed copy of these Orders in the following manner:
(i) by placing a sealed copy of these documents together with the Affidavit of Adrian Moore sworn 30 January 2014 in a clear plastic envelope and affixing same in a prominent position to the front of the dwelling at the premises 8 Bayview Street, Northwood;
(ii) by posting a sealed copy of the Summons, the Notice of Motion and these Orders together with the Affidavit of Adrian Moore sworn 30 January 2014 by Express Post to the Respondent at PO Box 252, Crows Nest, 2065; and
(iii) by emailing copies of these documents together with the Affidavit of Adrian Moore sworn 30 January 2014 to Duncan Scott, solicitor and also Melissa Benn of Hurlstone Park Legal,
by 4pm Friday 31 January 2014.
(3) Direct that the Summons together with the Notice of Motion, so far as the latter seeks orders numbered 2 to 7, be made returnable before the Duty Judge at 9.15am on Tuesday 4 February 2014 for the purpose of considering the orders sought in paragraphs 2 to 7 of the Notice of Motion.
(4) Reserve liberty to apply on 24 hours' notice.
(5) Costs reserved.
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Decision last updated: 07 February 2014
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